Rights of Surviving Spouses Flashcards Preview

Wills > Rights of Surviving Spouses > Flashcards

Flashcards in Rights of Surviving Spouses Deck (6)
Loading flashcards...

What is the surviving spouse's right to homestead, exempt property and family allowance?

In most states, statutes give a surviving spouse:
1. Homestead: The right to live in the home for as long as the spouse chooses (UPC allows a $15,000 cash allowance in lieu of homestead);
2. Exempt property: Household furniture, automobile, furnishings, appliances, personal effects in a fixed amount;
3. Family Allowance: Reasonable allowance in money out of estate for maintenance of family during administration.


What is a pretermitted spouse?

If the will was written before the marriage and was not updated to reflect the marriage.


What is the effect of a pretermitted spouse?

In most states, marriage after a will has no effect on the will. But under the UPC and in a few other states, the effect of marriage following execution of will is that the pretermitted spouse may claim an intestate share, which is basically what the spouse wouldve received had the spouse died intestate UNLESS (i) it appears the omission was intentional; or (ii) T made other provisions for the spouse by outside the will.


If a spouse is intentionally left out of a will, what can he or she claim?

An elective share of the elective estate. In all states, the elective estate includes the net testimentary estate. This is the probate estate less exempt property, family allowance, funeral expenses, administration expenses and creditors' claims.


What is a pretermitted child?

A child born or adopted after the will and in UPC and some other states is entitled to take an intestate share. unless:
(i) he was intentionally omitted;
(ii) T left substantially all of his estate to the parent of the pretermitted child; or
(iii) T provided for the child outside of the will.


What is the rule for a child thought to be dead?

Common Law: Harsh rule that does not provide for relief for mistake in the inducement to make or not to make provision in will unless both mistake and what would have been done but for the mistake appear in the terms of the will;
UPC and most states: If at the time of execution of will, T fails to provide in her will for a living child solely because she believes child dead, child is treated as pretermitted.